Will the new legislation help protect victims of domestic violence?

Will the new legislation help protect victims of domestic violence?

14 May 2024
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According to Ministry of Social Policy data, one in five women in Ukraine experiences violence during her lifetime. The most prevalent form of violence is domestic violence. According to UNDP estimates, approximately two million people in Ukraine suffer from domestic violence, 80% of reported cases being domestic violence against women. The primary document regulating measures to combat and prevent violence against women and domestic violence at the European level is the Istanbul Convention. Ukraine ratified the Convention in June 2022. Despite positive developments in state policy, the issue of violence against women remains relevant. It requires a response from the state, especially in the context of improving existing legislation to prevent and combat these phenomena. 

In Ukraine, domestic violence has long been a problem that has not been openly discussed. With the gradual development of the national system for prevention and combating this phenomenon, there has been an increase in the number of victims seeking assistance from law enforcement agencies and specialized institutions. The number of criminal cases related to domestic violence increases annually (with the exception of the first year of the full-scale invasion). At the beginning of 2024, 435 cases of domestic violence were registered, almost twice as many as at the beginning of 2023. Overall, last year in Ukraine, 2,705 criminal cases of domestic violence were documented, nearly twice the number compared to 2022 and slightly more than in 2021. 

The Istanbul Convention in current legislation

The key international document in the fight against gender-based and domestic violence is the Istanbul Convention. Its full title is the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. The document, which has been open for signature by European countries since May 2011, offers mechanisms to combat these phenomena.

Ukraine is among the authors of the Convention and was one of the first countries to sign it. However, Ukraine ratified the Convention only in 2022, 11 years after its signing. This became one of the steps bringing Ukraine closer to joining the European Union. The main reason for the delay in the ratification process was numerous myths and prejudices from the religious community, particularly due to the misinterpretation of the concept of “gender,” which some perceived as a replacement for the terms “men” and “women,” posing a threat to the traditional family, according to church officials. However, the Istanbul Convention is not about gender but about protection from violence.  

Since 2017, Ukraine has been changing its national legislation regarding the prevention of domestic violence and violence based on gender. In 2018, the Law “On Preventing and Combating Domestic Violence” came into force. The law outlines the key directions of state policy in combating violence. These include prevention of violence, effective response to instances of violence, protection and support of victims of violence, and proper investigation of violent acts and prosecution of perpetrators.

The law specifies the term “domestic violence,” defines a list of authorized bodies to counteract violence and assist victims, and outlines general measures for preventing violence. While violence was previously commonly understood as only the use of physical force against another person, it now also includes economic, sexual, and psychological violence. In 2019, amendments to the Criminal Code of Ukraine came into force, introducing criminal liability for domestic violence. Previously, punishment for documented cases of domestic violence was limited to fines. 

Bills on further implementation of the Convention

However, this is insufficient to ensure Ukrainian legislation’s compliance with the Istanbul Convention’s provisions. For example, the Istanbul Convention provides for criminal liability for psychological, physical, and sexual violence (including rape, sexual harassment, stalking, forced marriage, forced abortion, and sterilization). However, not all of the listed phenomena are grounds for criminal or administrative liability in Ukraine. For instance, the widespread phenomenon of stalking (pursuing women) is practically impossible to identify as a separate type of crime for which liability is provided. Procedures for holding individuals accountable for domestic violence need improvement, as well as protection for children who become victims of domestic violence. It is also necessary to expand and improve the network of institutions that perform functions related to preventing and combating violence and protecting and assisting violence victims.

Two bills have been registered in the Verkhovna Rada to bring domestic legislation closer to the requirements of the Convention. The first concerns strengthening administrative liability for domestic violence and sexual harassment, and the second improves mechanisms for preventing and combating domestic violence and violence based on gender.

At the end of 2023, Parliament passed Bill No. 8329 in its first reading, which amends the Code of Ukraine on Administrative Offenses. In accordance with the Convention, the law defines “sexual violence” and proposes introducing administrative liability for sexual harassment. Additionally, the bill improves and strengthens administrative liability for gender-based violence. While previously the grounds for administrative liability were only acts of domestic violence and failure to comply with a restraining order, if the bill is adopted, fines will be imposed for gender-based violence, sexual harassment, and failure to report incidents of domestic violence involving a child. 

In this article, we are discussing the second, equally important, Bill No. 10249. It proposes amendments to the Family Code, laws on mediation, protection of childhood, ensuring equal rights and opportunities for women and men, and preventing and combating domestic violence to provide better protection for domestic violence victims by changing legal norms and expanding the relevant infrastructure.

Domestic violence is not a private matter

Ukrainian legislation still contains provisions that hinder holding individuals accountable for systematically perpetrating violence. Specifically, the Family Code of Ukraine allows for reconciliation measures if one spouse commits domestic violence.

A reconciliation agreement between the perpetrator and the victim is possible during pre-trial investigation. This provision applies to cases related to domestic violence and stipulates that reconciliation is possible only if initiated voluntarily by the victim without coercion. However, this procedure is quite dubious since the court cannot determine who initiated the agreement and how voluntary it is. Despite a reconciliation agreement allowing for expediting the process of holding the perpetrator accountable, the perpetrator ultimately receives minimal punishment. Moreover, there is no guarantee that after reconciliation, the person who committed domestic violence will not repeat it. 

According to the results of a 2019 OSCE-led survey on violence against women, 41% of women in Ukraine believe that if a husband perpetrates violence against his wife, this situation should be resolved within the family. The ease with which reconciliation can be reached “within the family circle” during the pre-trial investigation, thus allowing the perpetrator to avoid punishment, reinforces the mistaken belief that domestic violence is a private matter for each family.

Unfortunately, the perception of the “insignificance” of domestic violence is also expressed by representatives of law enforcement agencies. According to the La Strada study conducted in 2016-2017, nearly half of the surveyed law enforcement representatives consider domestic violence a private matter. Moreover, more than half of the surveyed judges, prosecutors, and police officers stated that reconciliation within the family is prioritized over punishing the guilty party and protecting the victim of domestic violence.  

The Istanbul Convention clearly states that domestic violence is not a private matter of the family or the victim. Victims of domestic violence should be protected by the state. To achieve this, an effective system of measures needs to be established. Article 48 of the Istanbul Convention prohibits the use of alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence. An attempt to enshrine this norm in Ukrainian legislation was Bill No. 5492, registered in 2021 and passed in its first reading two years later in August 2023.

Bill No. 10249 incorporates provisions from Bill No. 5492 and several other changes. It contains guarantees of social and legal protection for domestic violence victims that align with European legislation. The bill proposes to prohibit pre-trial reconciliation in cases of domestic violence or gender-based violence. Additionally, it defines domestic violence as grounds for divorce during pregnancy or within a year after the birth of a child (in other cases, divorce during this time is prohibited).

Specialized support services for victims of violence

The current version of the Law on Preventing and Combating Domestic Violence (since 2018) defines central government authorities responsible for state policy in this area. It also includes a list of specialized institutions tasked with protecting victims of domestic violence. According to the current law, the state has undertaken to establish a hotline for preventing domestic violence and to launch a Unified State Register of Domestic and Gender-Based Violence Cases. However, not all legislative provisions have been implemented in practice, so the new bill proposes changes aimed at improving the existing infrastructure for protecting victims of domestic violence.

The main executive authority responsible for shaping and implementing state policy in the field of domestic violence prevention is the Ministry of Social Policy. In 2020, the National Social Service of Ukraine was established. It is subordinate to the Ministry of Social Policy and tasked with providing various social services, including those related to preventing domestic violence and ensuring equal rights and opportunities for women and men. Bill 10249 proposes to delineate the sphere of competence of these bodies. The Ministry of Social Policy would be entrusted with the right to shape state policy, while the National Social Service would be responsible for its implementation, including ensuring the formation of support services for victims of violence and monitoring their activities.

To effectively prevent and combat domestic violence in Ukraine, a vast network of specialized support services for victims of domestic violence is legislatively established. As of early 2024, there were 57 shelters for round-the-clock stay in Ukraine. Shelters have been established in almost all regions except for the Luhansk, Ternopil, and Chernihiv regions. However, this number of shelters is clearly insufficient, as the Istanbul Convention stipulates that there should be at least one shelter for every 10,000 people. Therefore, there should be approximately 3,000 shelters operating in Ukraine overall. The lack of a widespread network of facilities until now is likely due to budget constraints. Some of the currently operational facilities were established by civil society organizations, which are experiencing a critical shortage of space. Bill 10249 legalizes and expands the network of specialized support services to address this issue.

For example, it proposes to legalize the status of daytime centers for social-psychological assistance to provide help and psychological counseling to victims of violence who are not willing to leave their homes. According to the National Social Service, as of January 2024, there were 82 such centers in all regions of Ukraine except the Luhansk region, but they are not included in the network of specialized support services.

Under the current law, the Ministry of Social Policy was supposed to create a call center, which was intended to be not just a psychological support service for violence victims but also an institution for rapid response to domestic violence to stop it. Instead, a government “hotline” was established, which only receives calls from victims (without the additional functions planned for the call center). The draft law proposes to de jure formalize the situation that exists de facto, meaning to enshrine in law the existence of a “hotline” for prevention and combating domestic violence, gender-based violence, including sexual violence related to armed conflict, and violence against children (in addition, the “hotline” would lose its territorial divisions). Meanwhile, the call center, which was never created, would be excluded from the law.  

In our opinion, this provision is quite controversial because, theoretically, a call center should have more functions than the current “hotline” provides, and the function of immediate response to cases of violence and its prevention is crucial. Therefore, the draft law’s authors should either not abandon the idea of ​​creating a fully functional call center or reform the “hotline” by expanding its scope of responsibility.

Moreover, the bill obliges the Ministry of Social Policy to create a Unified State Register of Domestic and Gender-Based Violence Cases. The State Social Service was supposed to create such a register in 2019 (after liquidation of State Social Service in 2020, this function was transferred to the newly created National Social Service) , but it still does not exist. 

Child protection

Children are one of the vulnerable groups when it comes to domestic violence. In 2022, 10% of reports of domestic violence came from children, while in 2023, this figure stood at 3%. However, there are very few facilities where children who have become victims of domestic violence can receive help. Existing victim support facilities are usually adapted for adults, and the staff at such shelters specialize in working with adult individuals. However, most often, women with children turn to these facilities, for which there are no conditions for accommodation in these institutions.

There are no state institutions in Ukraine where children can stay alone without adults, so the draft law proposes to create them. The explanatory note to the bill says they can be established according to the internationalBarnahusmodel (Icelandic for “house for children”). This approach involves creating a place where representatives of law enforcement agencies, criminal justice, child protection services, medical workers, and psychologists collaborate to ensure effective protection, services, and access to justice for children who have become victims of violence. In these institutions, children are interviewed in a non-traumatic manner, and they are provided with psychological and medical assistance.

Currently, only 11 non-governmental centers for working with children according to the “Barnahus” model are operating in Ukraine (in the Vinnytsia, Zhytomyr, Mykolaiv, Kirovohrad, Odesa, Ternopil, Chernivtsi, Poltava, Sumy, and Volyn regions). In the future, such centers are expected to operate in all regional centers of Ukraine. If the draft law is adopted, specialized centers for working with children will not be pilot projects of international organizations but will receive the status of a national model of specialized services for children. However, the text of the draft law does not explicitly state that specialized centers will operate according to the “Barnahus” model. This provision is only mentioned in the explanatory note.   

War crimes

Importantly, the bill includes individuals who may seek support from specialized support services for victims, including those who have suffered sexual violence during armed conflict.

At the conference “Restoring the Rights of Victims of Conflict-Related Sexual Violence: An Element of Peace and Global Security,” held in March of this year, Olena Zelenska stated that since the start of the full-scale war, 274 cases of sexual violence have been registered under the relevant statute (however, there undoubtedly are many more such crimes). According to the First Lady, not all victims dare to speak out on this issue, but this does not diminish the societal significance of this problem. 

The Istanbul Convention applies both in times of peace and during armed conflicts, making the implementation of this norm into Ukrainian legislation both appropriate and necessary. Victims of violence in conditions of armed conflict now receive legal guarantees to protect their rights and access assistance from specialized services.

However, one such change is not sufficient. For comprehensive protection of individuals affected by violence during war, Ukrainian legislation must establish a clear legal mechanism to identify and hold perpetrators accountable for war crimes. The current national legislation does not enable the national judicial system to classify war crimes and crimes against humanity as international crimes with no statute of limitations. Ukraine has already established an infrastructure for investigating violations of international humanitarian law. However, the imperfection of national legislation (specifically, the insufficient detail regarding war crimes and accountability for them) makes this process unsystematic. 

Back in June 2021, Parliament passed Bill No. 2689, which proposes implementing the norms of international criminal and humanitarian law into the Criminal Code, providing national law enforcement and judicial authorities with legal tools to hold war criminals accountable. It empowers national investigative and judicial authorities to effectively prosecute individuals who have committed war crimes under international law. The bill received a positive expert evaluation, including regarding compliance with international legal norms. Those who commit crimes against humanity must understand that they will be pursued in any country, and these crimes have no statute of limitations. The expert community has repeatedly emphasized the urgency of passing this bill, yet it still awaits the president’s signature.

Conclusions

A significant portion of current norms does not meet the pan-European standards set forth in the Istanbul Convention. To address this, updating Ukrainian legislation is necessary, including the adoption of Bill No. 10249, which would strengthen the protection of victims of domestic violence. Importantly, this bill is aimed not only at adults but also at children, who, although highly vulnerable to domestic violence, are often overlooked.

The main change introduced by this bill in line with the Istanbul Convention is that the perpetrator of violence would be punished regardless, without the possibility of “settling” with the victim. However, for this provision to work, there needs to be a change in law enforcement practices and societal consensus on this issue, as victims are still often accused of “provoking” violence. 

Authors

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